Wilkins v Serco Ltd – An important High Court decision on when allocation to the small claims track is and is not appropriate.

Highlight

1. This is the first allocation decision that we are aware of from the High Court;
2. The purposive approach taken by the Judge in this case is remarkable for the breadth of factors it takes into account – well beyond the factors in CPR 26.8(1).

The facts

A claim was brought by Mr Wilkins for false imprisonment against Serco Ltd. Mr Wilkins was being held on remand at a prison run by Serco. He was charged with common assault. He plead guilty to that offence and on the 9 February 2017 the Magistrates imposed a suspended prison sentence at a video hearing. 

False imprisonment is a strict liability tort – once imprisonment has been proven by a Claimant the burden shifts to the Defendant to show that the imprisonment was lawful. If the imprisonment is unlawful, the Defendant is strictly liable for it – there can be no consideration of whether the Defendants actions were say, reasonable or proportionate.

As it happened the Magistrates Court failed to provide the relevant paperwork to Serco with the result that Mr Wilkins was not released until 14 February 2017, some four days later. A public funding certificate was obtained on 11 May 2017.

A pre-action protocol letter was sent on the 11 May 2017, which was replied to on the 17 December 2017. The reply denied liability suggesting that the Magistrates Court was liable. 

This defence was doomed to fail. Not only was Serco clearly liable due to the strict liability nature of the tort (it was irrelevant whether the delay of the Magistrates Court caused the false imprisonment) but under common law, Courts are immune to liability in all but the most extraordinary circumstances.

Proceedings were issued and the claim form estimated damages at between £3000 – £8500. Particulars were never served as extensions of time were obtained to extend the period for service. The Defendant made an offer to settle for £3000.00 inclusive of costs on the 28 February 2019. The Claimants responded with a part 36 offer to settle on £3000.00 in damages and for costs to be assessed.

The claim was subsequently settled for £3,000.00 with the agreement reached embodied in a Tomlin which contained Order an additional provision that “neither party be precluded from raising arguments on costs in relation to the allocation of track”.

At a provisional assessment the Master had to determine a preliminary point: Would the claim have been allocated to the small claims track or another track?

The Master’s provisional assessment was: “Applying Rule 26.6(3) CPR that is a small claim. Costs are limited to the costs recoverable on a small claim. Bill to be re-cast accordingly.”

The Claimant requested an oral review hearing, where having heard Counsel, the Master held:

“1. …I formed the view this was a claim which settled the [sic] £3,000 and accordingly should have been suitable to be determined on the small claims track. Therefore, pursuant, to CPR 46.13(3), I restricted the recoverable costs to those which would have been allowed on that track.

2. Having heard the submissions of learned counsel… I have concluded in the circumstances, I put too much emphasis on the value of the claim and insufficient emphasis on the complexities and the issue of the State interfering in a person’s human rights.

3. That being the case, it follows that I prefer the submissions of Mr Griffiths to those of Mr Innes. Pursuant to CPR 26.8, I have to have regard to several factors on allocation which includes complexity (Rule 26.8(1)(c)). Another factor is the importance of the claim to persons who are not parties (Rule 26.8(1)(g)). In the present case when one looks at the possible complexities and the fact, that in false imprisonment claims, there is still in the County Court the right to trial by jury, it seems to me that the District Judge Avent who has a great deal more experience than me in allocating cases to track was right in the conclusions that he reached in Maguire [sic], albeit I am not bound by his decision.”

The Defendant appealed against the decision on this preliminary point.

The grounds of appeal

It was agreed by Counsel for the Claimant and Defendant that the Master was making a case management decision and therefore on appeal the standard of review to be exercised was the same as for any exercise of discretion – the decision could only be overturned where the first instance Judge had:

1. Misdirected himself on the law;
2. Failed to take into account relevant factors;
3. Taken into account irrelevant factors; or
4. Made a decision which no Judge acting reasonably could have made.

Therefore, a significant portion of the argument and subsequent Judgment focused on alleged deficiencies in the Master’s decision.

The Argument for allocation to the small claims track

1. The value was plainly below £10,000;
2. The claim was straightforward because the tort of false imprisonment was a strict liability tort;
3. The Master failed to identify the alleged insufficient emphasis in his provisional decision;
4. It was an error of law to take into account the possibility that a jury trial may take place;
5. It was wrong in principle to take into account the general importance of false imprisonment claims – the Master should have focused on the specific facts of the instant case;
6. As neither complexity or importance to non-parties applied, there were no factors in CPR 26.8(1) that assisted the Claimant – no reason existed not to allocate the claim to the ‘normal track’ based on value.

The Judgment and some commentary

At paragraphs 32 the court concluded that: “Whilst CPR 26.8(1)(c) refers to “the likely complexity of the facts law or evidence… the decision maker is not confined by this provision or otherwise to only consider those aspects of a case that are shown to be more likely than not.” 

This is now binding authority that features of a claim do not have to be likely to arise in a case in order for the court to take them into account when determining allocation. In fact, it suggests entirely the opposite, such that other relevant factors ought still to be considered as well, even where those factors may not be more likely than not to arise.

At paragraph 37 of the judgment, the court continued: “It does not follow from the fact that CPR 26 does not specifically exclude false imprisonment actions from the SCT, nor make bespoke provision for their allocation (as is done with certain types of commonly litigated claims, summarised at para 20 above), that the general nature of this cause of action is irrelevant to the suitability of a particular track.” 

This is equally useful in the sense that it makes clear the fact that merely because the CPR does not make provision for a particular kind of claim to be allocated in a particular way, the general nature of such claims is a relevant consideration that can be taken into account. 

The court went on in the same paragraph to say: “…the CPR 26.8(1) factors are non-exhaustive and other matters of apparent relevance may be considered save where they are expressly or implicitly excluded by the rules.”

While a plain reading of CPR 26.8 does not expressly exclude taking into account other factors, in our experience judges in the County Court dealing with allocation have been reluctant to consider them. One of the most significant factors not included in CPR 26.8(1) that Claimants want to advance is the difficulty in presenting a claim without legal representation. Indeed this reason formed a significant part of the decision.

The wider importance of the claim

The judge placed particular emphasis on the wider importance of the claim because it involved the state, a breach of fundamental constitutional rights and the importance of sending a message to state institutions that these sorts of breaches were unacceptable. 

While few claims involve alleged breaches of constitutional rights, there are plenty of claims that engage important issues that on their face appear to be headed for the small claims track. 

The takeaway

On allocation, the Court can and should take into account a very wide range of factors, sometimes  outside of those specified in CPR 26.8(1). As a result, those that are dealing with claims that are of only modest value but raise complex legal or evidential issues should focus on addressing the court in detail on the other factors which militate against allocating a claim to the small claims track, even when that is the ‘normal’ track for the claim, based on value.